Environmental Decisions of the U.S. Court of Appeals, all Circuits. Summaries provided by Waste Information & Management
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Wednesday, November 28, 2012

Hornbeck Offshore Services, et al v. Kenneth Salazar (Interior Dept.)

Nov 27: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30936. The case arises from the 2010 Deepwater Horizon accident in the Gulf of Mexico. The explosion killed 11 workers, caused the drilling platform to sink, and resulted in a major uncontrolled release of oil. At Presidential direction, those

events prompted the Department of the Interior to prohibit all new and existing oil and gas drilling operations on the Outer Continental Shelf for six months.

The district court preliminarily enjoined enforcement of the moratorium. Thesingle issue on appeal is whether Interior's subsequent actions violated a specific provision of the court's injunction, justifying a finding of civil contempt. The district court was certainly correct that Interior immediately took steps to avoid the effect of the injunction, but in a split decision, the majority Appeals Court concluded that "none of those actions violated the court's order" and reversed the decision. The majority further ruled:

"Interior was carrying out a policy decision made by the President. On display throughout was the 'decision, activity . . . and dispatch' that the Framers envisioned for the Executive Department of government. THE FEDERALIST NO. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Litigation was not able to keep pace with these developments. See id. (discussing the Executive's unique role 'in the most critical emergencies of the state'). The national importance of this case weakens, not strengthens, the propriety of the court's contempt finding. The controversial policy decisions that the May and July Directives reflected were made at the highest level of government. In implementing those decisions, we do not discern a violation of a clear provision of the district court's order by the words expressed or actions taken by the Secretary.

"The district court dealt expeditiously and forcefully with extremely significant litigation. The potential APA violations that led to the initial injunction are not at issue today, but such violations, if significant, would justify a district court's consideration of an injunction. Our decision is a narrow one. We conclude that there is no clear and convincing evidence that Interior's actions after the injunction violated the clear terms of the injunction as drafted. Therefore, there was no civil contempt."

The dissenting Justice said in a lengthy dissent, "Because I would hold that the district court did not abuse its discretion in holding Interior in contempt, I respectfully dissent. While the majority views Interior's acts in isolation, the totality of the circumstances supports the able district court's decision."

And, concluded, "As the majority opinion states, the 'controversial policy decisions' at issue here were 'made at the highest levels of government.' But that does not insulate those decisions from judicial review. The district court determined that the Interior's actions amounted to a 'determined disregard' of its preliminary injunction order. The court's power to enforce its orders must remain intact, even in the midst of the most critical emergencies of the state. Simply put, the Judiciary may be the least dangerous branch, but it is not entirely toothless."

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